The death of a tenant can lead to complex issues for landlords to deal with. Hayley Gaffney of Coodes Solicitors’ Personal Disputes Team explains what it means for a tenancy and what a landlord should do.
If your tenant dies then it is not only likely to be extremely upsetting, it can also be confusing from a legal perspective. Landlords may not know what to do with the deceased tenant’s deposit, for example, and what it means for any other tenants living at the property. The key issue to understand is that a tenancy does not automatically end when a tenant dies. What a landlord needs to do after the death of a tenant depends on how the tenancy was set up and other key details.
The death of a tenant will not automatically terminate the most common kind of tenancy – an assured shorthold tenancy (AST). Landlords cannot therefore make deductions or return deposits until the tenancy is brought to an end. If the tenancy is still within the fixed term, the tenant’s personal representatives step into the shoes of the deceased. The tenancy will then pass to the deceased tenant’s estate which continues to be liable for the tenant covenants in the AST. Unless the AST allows assignment, the personal representatives will not be able to occupy the property themselves or allow others to occupy without the landlord’s consent. In order to terminate the tenancy of someone who has passed away, a landlord should contact a solicitor in order to seek mandatory ground for possession. You will need to begin this process no later than a year after the death of your tenant.
If there are other tenants living at the same property as the deceased, they have the right to stay until the end of the tenancy.
If the tenancy is still within the fixed term, it will pass onto the deceased tenant’s personal representatives, as set out in his or her will.
The tenant’s spouse or civil partner (or somebody living as such) was living with the tenant before they died would have the right to stay at the property, if the tenancy is an assured periodic tenancy. The exception would be if there is an express term in the contract making provision for someone else succeeding the tenancy.
Where there is no spouse or civil partner, anyone who qualifies to succeed under any express term in the contract will inherit the tenancy. If there is no express term and no spouse or civil partner, there is no right to succession so nobody has the right to live in the property. The deceased tenant’s personal representatives continue to be responsible for paying the rent. However, unless the tenancy allows it in any express term, they will not be able to occupy the property themselves, or allow anyone else to, without the landlord’s permission.
According to the law, succession of a tenancy can only occur once. Therefore, if the deceased tenant was a successor themselves, the tenancy cannot be succeeded again. In this case, the tenancy does not automatically end. The landlord would still need to terminate the deceased’s tenancy before granting any new tenancy.
Depending on the type of tenancy, it may be possible for the landlord to serve a section 8 notice under the Housing Act 1988 relying upon Ground 7 or, more generally, a section 21 notice. As long as the landlord gives two months’ notice, they will be able to regain possession of the property.